United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 27, 2006 Decided January 16, 2007

No. 05-5365

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,

AFL-CIO, LOCAL 446,

APPELLANT

v.

R. JAMES NICHOLSON, SECRETARY OF VETERANS AFFAIRS,

AND MICHAEL J. KUSSMAN, M.D., M.S., M.A.C.P.,

ACTING UNDER SECRETARY FOR HEALTH FOR THE VETERANS

HEALTH ADMINISTRATION,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 02cv00613)

Kevin M. Grile argued the cause for appellant. With him on

the briefs were Charles A. Hobbie and Mark D. Roth.

Alan Burch, Assistant U.S. Attorney, argued the cause for

appellee. With him on the brief were Kenneth L. Wainstein,

U.S. Attorney at the time the brief was filed, and R. Craig

Lawrence, Assistant U.S. Attorney. Michael J. Ryan, Assistant

U.S. Attorney, entered an appearance.
2

Before: GINSBURG, Chief Judge, and SENTELLE and TATEL,

Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge: This case has its roots in a labor

dispute between the Department of Veterans Affairs (“VA”)

Medical Center in Asheville, North Carolina, and the American

Federation of Government Employees, AFL-CIO, Local 446,

(“the Union”), which represents operating room nurses who

work at the Asheville Medical Center. The Union secured an

arbitration award in favor of the Asheville nurses, but a

subsequent decision by the VA’s Under Secretary for Health

made it impossible for the Union to enforce that award. The

Union filed this lawsuit against the Secretary of Veterans Affairs

and the VA’s Under Secretary for Health to have that decision

declared unlawful, so that the arbitration award could be

enforced. The district court dismissed the Union’s lawsuit for

lack of subject matter jurisdiction. On this appeal, the Union

argues that the district court erred in dismissing the suit and

should have ruled in its favor on the merits. For the reasons that

follow, we hold that the district court did have jurisdiction over

the Union’s complaint. On the merits, however, we hold that the

district court should have ruled for the VA defendants.

I. Jurisdiction

A. Background

Title VII of the Civil Service Reform Act of 1978

(“CSRA”), which is codified at title 5, chapter 71 of the U.S.

Code, authorizes most federal employees to collectively bargain

over the “conditions of [their] employment.” See 5 U.S.C. §

7102(2). The collective bargaining rights of doctors and nurses

employed by the VA, however, are more limited. In Colorado
3

Nurses Ass’n v. FLRA, 851 F.2d 1486 (D.C. Cir. 1988), we held

that the Secretary of the VA had the authority to set the

conditions of employment for these employees by regulation and

that VA medical professionals did not have a right to mandatory

collective bargaining. Colo. Nurses, 851 F.2d at 1492.

Following that decision, in 1991 Congress passed a new statute

providing that:

Except as otherwise specifically provided in this title, the

authority of the Secretary to prescribe regulations under

section 7421 of this title is subject to the right of Federal

employees to engage in collective bargaining with respect

to conditions of employment through representatives

chosen by them in accordance with chapter 71 of title 5

(relating to labor-management relations). 

Department of Veterans Affairs Health-Care Personnel Act,

Pub. L. No. 102-40, title II, § 202, 105 Stat. 187, 200 (1991),

codified at 38 U.S.C. § 7422(a). Chapter 71 of title 5 governs

federal employees’ labor relations generally, including

grievance procedures under collective bargaining agreements.

5 U.S.C. §§ 7121–7123. In other words, 38 U.S.C. § 7422(a)

gives VA medical professionals the right to bargain according

to the rules set out in chapter 71 of title 5, subject to limitations

“specifically provided” in title 38. Title 38 imposes three

substantive limitations on the VA nurses’ bargaining rights

under title 5:

Such collective bargaining (and any grievance procedures

provided under a collective bargaining agreement) in the

case of employees described in section 7421(b) of this title

may not cover, or have any applicability to, any matter or

question concerning or arising out of (1) professional

conduct or competence, (2) peer review, or (3) the

establishment, determination, or adjustment of employee
4

compensation under this title.

38 U.S.C. § 7422(b). The third of these limitations – matters

concerning employee compensation – is at issue in this case. In

addition, Congress authorized the VA Secretary to determine

whether a matter is subject to collective bargaining or instead

falls under one of the three listed exceptions. As applicable to

this case, the statute provides that “[a]n issue of whether a

matter or question concerns or arises out of . . . the

establishment, determination, or adjustment of employee

compensation under this title shall be decided by the Secretary

and is not itself subject to collective bargaining and may not be

reviewed by any other agency.” Id. § 7422(d). The VA

Secretary has delegated this § 7422(d) authority to the Under

Secretary for Health.

Pursuant to their collective bargaining rights under 38

U.S.C. § 7422(a) and chapter 71 of title 5, operating room

nurses at the VA Medical Center in Asheville, North Carolina

are represented by the plaintiff Union, AFGE Local 446. The

Asheville Medical Center is subject to a nationwide collective

bargaining agreement (“CBA”) between the American

Federation of Government Employees and the VA. In February

1999 AFGE Local 446 filed a grievance. The Union claimed

that, under the CBA, operating room nurses at the Medical

Center were entitled to “premium pay” for any hours worked at

night or on weekends. The Medical Center disagreed. The

grievance went to arbitration, and in December 1999 the

arbitrator ruled in favor of the Union. The arbitrator concluded

that operating room nurses were entitled to premium pay for

night and weekend work, and ordered appropriate back pay

dating to the filing of the grievance. The details of the

grievance, which are not relevant to the question of the district

court’s jurisdiction over this lawsuit, are discussed at greater

length in section II of this opinion.
5

1 See Part II.A, infra.

An arbitrator’s award may be appealed to the Federal Labor

Relations Authority (“FLRA”), but in this case the Medical

Center waited too long before filing its appeal,1 and the FLRA

dismissed the appeal as untimely. The Medical Center refused

to recognize the award. It is an unfair labor practice (“ULP”)

for a federal agency to fail to comply with a valid arbitration

award, see Dep’t of Health & Human Servs. v. FLRA, 976 F.2d

1409, 1413 (D.C. Cir. 1992), so to enforce the award the Union

filed a ULP charge with the FLRA. In September 2000 the

FLRA served a ULP complaint on the Medical Center.

Meanwhile, by letter of February 14, 2000, the Medical

Center had requested a determination from the VA that the

arbitrator lacked the authority to rule on the Union’s grievance,

on the grounds that 38 U.S.C. § 7422(b) excludes matters

concerning the determination of employee compensation from

the bargaining and grievance process. Several months later, the

VA Under Secretary for Health returned the Medical Center’s

request for a § 7422 determination. The Under Secretary

instructed the Center to first attempt to resolve the matter

through consultation with the Union, pursuant to the collective

bargaining guidelines then in effect between the AFGE and the

VA. Negotiations failed, and in October 2000 the Medical

Center again requested a ruling from the Under Secretary.

With this request still pending with the Under Secretary, the

FLRA General Counsel prepared to seek judgment against the

Medical Center in the ULP proceeding. On March 5, 2001, the

General Counsel moved for a summary judgment to enforce the

arbitration award. Also on March 5th, the VA Under Secretary

issued a Decision Paper (“§ 7422 Decision”). The Under

Secretary found, “[u]nder the authority in 38 U.S.C. 7422(d),”

that the arbitrator’s decision and the subsequent ULP proceeding
6

before the FLRA “concern[] the establishment, determination,

or adjustment of employee compensation.”

With the § 7422 Decision in hand, the Medical Center

opposed summary judgment in the FLRA proceeding and sought

dismissal of the Union’s attempt to enforce the arbitration

award. The Medical Center argued that the FLRA lacked

jurisdiction over the Union’s complaint, and that the Under

Secretary’s § 7422 Decision conclusively decided the issue

because a question decided by the VA under § 7422(d) “is not

itself subject to collective bargaining and may not be reviewed

by any other agency.” 38 U.S.C. § 7422(d). The FLRA agreed

and dismissed the complaint. The FLRA held that its

jurisdiction could be challenged at any stage in its proceedings,

and that because the Under Secretary “has made a § 7422(d)

determination, the Authority lacks jurisdiction over this matter.”

U.S. Dep’t of Veterans Affairs, VA Med. Ctr., Asheville, N.C., 57

F.L.R.A. 681, 2002 WL 1019134, at *5 (Jan. 31, 2002) (“VAMC

Asheville”). 

The Union did not seek judicial review of the FLRA

decision, for reasons that will be discussed below. Instead, in

April 2002 it filed this lawsuit against the Secretary of Veterans

Affairs and the Under Secretary for Health in their official

capacities – collectively, the “VA” – on the theory that the

Under Secretary’s § 7422 Decision was unlawful. If the § 7422

Decision were declared unlawful by the district court, the Union

reasoned, then the arbitration award would be enforceable

against the Medical Center, and the operating room nurses at

that facility would finally receive their “premium pay” for night

and weekend work.

The Union and the VA filed cross motions for summary

judgment. The VA also sought dismissal under Federal Rule of

Civil Procedure 12(b)(1), arguing that the district court did not
7

have subject matter jurisdiction over the claims raised in the

Union’s complaint. In July 2005 the district court granted the

VA’s motion to dismiss. AFGE, Local 446 v. Principi, 404 F.

Supp. 2d 14, 28 (D.D.C. 2005) (“Local 446”). The district court

concluded that, although the Union claimed to be challenging

the legality of the Under Secretary’s § 7422 Decision, the

Union’s “Complaint is properly characterized as a claim seeking

review of the January 31, 2002, FLRA decision in the ULP

proceeding, which dismissed Plaintiff’s administrative

complaint.” Id. at 21. Judicial review of such an FLRA order

is established by 5 U.S.C. § 7123(a), which provides that an

aggrieved person – here, the Union – may seek review of an

FLRA order involving an unfair labor practice in the United

States Court of Appeals. See id. at 20-22. And because the

Union’s FLRA case involved VA medical professionals whose

bargaining rights were established and limited by 38 U.S.C. §

7422, subsection (e) of that statute specifically requires that a

petition for judicial review authorized by 5 U.S.C. § 7123 be

brought in the U.S. Court of Appeals for the District of

Columbia Circuit. Id. at 21. 

District courts do not have concurrent jurisdiction to review

challenges to FLRA orders, AFGE v. Loy, 367 F.3d 932, 935

(D.C. Cir. 2004), so the district court held that it lacked

jurisdiction over the FLRA’s January 31, 2002 order dismissing

the ULP complaint. Review of that order, the court concluded,

could be had only in the D.C. Circuit. Local 446, 404 F. Supp.

2d at 23. Having found that the Union’s complaint was

“actually an appeal of the FLRA ruling,” the district court

concluded that the Union had failed to “adequately set forth any

claim challenging the merits of the Under Secretary’s

determination.” Id. at 27-28. For the reasons explained below,

we reverse the district court’s jurisdictional determination.
8

B. Analysis

This court reviews the district court’s dismissal for lack of

subject matter jurisdiction de novo. Doe v. Metro. Police Dep’t,

445 F.3d 460, 465 (D.C. Cir. 2006). First, the Union argues that

the district court mischaracterized its complaint. According to

the Union, this lawsuit is not a veiled attempt to appeal the

January 31, 2002 FLRA order. Rather, it is a straightforward

claim under the Administrative Procedure Act (“APA”) to set

aside agency action – the Under Secretary’s § 7422 Decision –

that the Union contends is arbitrary and capricious or otherwise

unlawful. See 5 U.S.C. § 706(2). Second, the Union argues that

the district court did have jurisdiction over its complaint. The

VA acknowledges that the legality of final agency action is

presumptively subject to judicial review, see Transactive Corp.

v. United States, 91 F.3d 232, 236 (D.C. Cir. 1996), but argues

that in this case the Union was required to bring its claims

against the VA in this court, not the district court. We agree

with the Union on this issue, and hold that the district court

erred in dismissing the Union’s complaint.

1. Judicial Review of the FLRA Order

As emphasized by the district court, the Union did not seek

review of the January 31, 2002 FLRA order in the D.C. Circuit,

although it was authorized to do so under 38 U.S.C. § 7422(e)

and 5 U.S.C. § 7123(a). The reason is simple: petitioning for

review of that order would have been to no avail, because the

D.C. Circuit lacked the authority to grant the relief sought by the

Union. The Under Secretary’s decision that a matter arises out

of a collective bargaining exclusion “may not be reviewed by

any other agency.” 38 U.S.C. § 7422(d). The Federal Labor

Relations Authority and the Department of Veterans Affairs, of

course, are separate agencies. The FLRA therefore lacked

authority to review the § 7422 Decision, and on review of the
9

FLRA’s dismissal this court could not have concluded

otherwise. 

It is true that “district courts do not have concurrent

jurisdiction over matters within the exclusive purview of the

FLRA.” AFGE v. Loy, 367 F.3d 932, 935 (D.C. Cir. 2004). The

district court concluded, under Loy, that the FLRA had exclusive

jurisdiction over the claims raised in this lawsuit. Local 446,

404 F. Supp. 2d at 21-22. The rule from Loy does not apply in

the instant case, however, because the legality of the disputed

§ 7422 Decision is expressly outside the FLRA’s purview.

Because the Union is presumptively entitled to judicial review

of its claim that the Under Secretary’s § 7422 Decision was

unlawful, and because the D.C. Circuit could not provide that

review on a petition for the review of the FLRA decision

dismissing the ULP complaint, Loy does not provide a basis for

the district court dismissing this case for lack of jurisdiction.

2. Judicial Review of the § 7422 Decision

Notwithstanding any mistaken reliance on Loy, the VA

contends that the district court nonetheless reached the right

result in dismissing this case for lack of subject matter

jurisdiction. The VA argues that the Union was required to

bring such a challenge directly to the D.C. Circuit. On this

theory, the district court correctly dismissed the Union’s lawsuit,

not because it was a veiled appeal of the FLRA order, but

because the district court lacked jurisdiction over the Union’s

challenge to the Under Secretary’s § 7422 Decision. 

To resolve this question we must analyze the scope of 38

U.S.C. § 7422(e), which concerns judicial review of disputes

involving VA medical professionals. As discussed above, under

title 38 these VA employees are entitled to bargain collectively

“in accordance with chapter 71 of title 5,” “[e]xcept as otherwise
10

specifically provided in [title 38].” 38 U.S.C. § 7422(a). One

of the exceptions to the rights provided under title 5 is found in

§ 7422(e): 

A petition for judicial review or petition for enforcement

under section 7123 of title 5 in any case involving

employees described in section 7421(b) of this title or

arising out of the applicability of chapter 71 of title 5 to

employees in those positions, shall be taken only in the

United States Court of Appeals for the District of Columbia

Circuit.

Id. § 7422(e). As it concerns petitions for review of FLRA

orders, the effect of § 7422(e) is simply to channel all such

petitions involving VA medical professionals to the D.C.

Circuit, as opposed to any other United States court of appeals.

Thus – as noted above – had the Union sought judicial review of

the January 31, 2002 FLRA order, § 7422(e) would have

required the Union to file that petition for review in this court.

Such a petition for judicial review would be brought “under

section 7123 of title 5” (which authorizes judicial review of

unfair labor practice claims involving arbitration awards, see 5

U.S.C. § 7123(a)(1)), and would involve VA employees

“described in section 7421(b)” (which include registered nurses,

see 38 U.S.C. § 7421(b)(5)). 38 U.S.C. § 7422(e). In contrast,

a party whose right to judicial review of an FLRA order arises

directly under title 5 may choose to seek review “in the circuit

in which the person resides or transacts business or in the United

States Court of Appeals for the District of Columbia.” 5 U.S.C.

§ 7123(a) (emphasis added). 

That much should not be controversial. The controversy is

over the meaning of the phrase “petition for judicial review” as

it is used in § 7422(e): “A petition for judicial review or petition

for enforcement under section 7123 of title 5 in any case
11

involving employees described in section 7421(b) of this title or

arising out of the applicability of chapter 71 of title 5 to

employees in those positions” must be brought in the D.C.

Circuit. The VA argues that § 7422(e) applies not only to

petitions authorized under 5 U.S.C. § 7123, but also to all other

disputes that “aris[e] out of the applicability of chapter 71 of

title 5 to [VA medical] employees.” On this argument, the

Union’s claims in this lawsuit were required to be brought in a

petition for review filed in the D.C. Circuit because the Union’s

claims “aris[e] out of the applicability of chapter 71 of title 5”

to the Asheville operating room nurses. In defense of their

reading of subsection (e), the VA asks us to read § 7422 as a

whole. It makes sense – the argument goes – that subsection (e)

would govern all challenges to the VA’s authority, established

in subsection (d), to settle disputes concerning the collective

bargaining exclusions enumerated in subsection (b).

While plausible at first glance, the VA’s intuition is

inconsistent with the plain meaning of the statute. On the VA’s

reading of subsection (e), the term “petition for judicial review”

refers to two types of petitions: petitions “under section 7123 of

title 5 in any case involving employees described in section

7421(b) of this title,” and petitions “arising out of the

applicability of chapter 71 of title 5 to employees in those

positions.” In other words, according to the VA, subsection (e)

provides that “[a] petition for judicial review or petition for

enforcement” must be taken in the D.C. Circuit if that petition

is brought “under section 7123 of title 5 in any case involving

employees described in section 7421(b) of this title,” and a

petition must also be taken in the D.C. Circuit if that petition

“aris[es] out of the applicability of chapter 71 of title 5 to

employees in those positions.” 

The statute does not support such an unwieldy construction.

To the contrary, the term “petition for judicial review” refers
12

only to one type of petition: petitions authorized under section

7123 of title 5. It is clear that both “petition for judicial review”

and “petition for enforcement” are so authorized. Section

7123(a) provides that aggrieved persons may obtain judicial

review of specified final FLRA orders. Section 7123(b)

provides that the FLRA may petition “for the enforcement of

any order of the Authority.” And § 7123(c) contains rules

applicable to “a petition under subsection (a) of this section for

judicial review or under subsection (b) of this section for

enforcement.” Accordingly, the first fifteen words in § 7422(e)

must be read together: “A petition for judicial review or petition

for enforcement under section 7123 of title 5” must be taken in

the D.C. Circuit if that petition is from “any case involving

employees described in section 7421(b) of this title or arising

out of the applicability of chapter 71 of title 5 to employees in

those positions.” Subsection (e) does not apply to every “case

. . . arising out of the applicability of chapter 71 of title 5,”

because “any case” does not refer to all cases, but only to those

cases involving final FLRA orders that are subject to judicial

review under 5 U.S.C. § 7123. 

Our construction of this statute is supported by a recent

decision in a very similar case. In AFGE, Local 2152 v.

Principi, 464 F.3d 1049 (9th Cir. 2006), the Ninth Circuit

rejected the argument that challenges to the VA’s § 7422(d)

authority must be brought in the D.C. Circuit. Though

subsection (e) is not a model of clear draftsmanship, we agree

with the Ninth Circuit that “[t]he plain language of § 7422(e)

refers only to petitions for review or petitions for enforcement

under § 7123 of title 5.” Id. at 1054. Read properly, § 7422(e)

merely channels 5 U.S.C. § 7123 petitions to the D.C. Circuit in

certain cases involving VA employees; it does not establish the

D.C. Circuit’s jurisdiction to review, in the first instance, all

cases involving the application of title 5 to VA medical

professionals. Congress did not preclude judicial review of the
13

VA’s § 7422(d) authority, and because § 7422(e) does not

establish the D.C. Circuit as the forum for such challenges we

hold that the district court erred in dismissing this case for lack

of jurisdiction. Under 28 U.S.C. § 1331, the district courts have

original jurisdiction over civil actions arising under federal law,

and the Union properly filed this lawsuit in the United States

District Court for the District of Columbia.

II. Merits

The district court dismissed the Union’s complaint on fullybriefed cross-motions for summary judgment. The facts are not

in dispute. Rather than remand the case for further proceedings,

in the interest of judicial efficiency – and mindful that the

Asheville operating room nurses with a stake in this litigation

received their favorable arbitrator’s award in December 1999 –

we turn to the merits of the Union’s claims. See, e.g., Block v.

Meese, 793 F.2d 1303, 1309 (D.C. Cir. 1986). Section 7422(d)

grants the VA broad authority to decide whether a question

“concerns or arises out of” a determination of employee

compensation, and we hold that the Under Secretary’s § 7422

Decision was not unlawful.

A. Background

In February 1999 the plaintiff in this case, AFGE Local 446,

filed a grievance on behalf of operating room nurses employed

by the VA Medical Center in Asheville, North Carolina. The

grievance alleged that the collective bargaining agreement in

place between the AFGE and the VA required the Medical

Center to pay its operating room nurses a premium for all work

at night or on weekends. The grievance was not resolved, so the

Union pursued arbitration under the collective bargaining

agreement. 
14

In December 1999 the arbitrator sided with the Union. The

arbitrator based this decision on 38 U.S.C. § 7453, which

governs VA nurses’ premium pay, and on corresponding

provisions in the collective bargaining agreement. Section 7453

provides, in relevant part:

(b) A nurse performing service on a tour of duty, any part

of which is within the period commencing at 6 postmeridian

and ending at 6 antemeridian, shall receive additional pay

for each hour of service on such tour at a rate equal to 10

percent of the nurse’s hourly rate of basic pay if at least

four hours of such tour fall between 6 postmeridian and 6

antemeridian. When less than four hours of such tour fall

between 6 postmeridian and 6 antemeridian, the nurse shall

be paid the differential for each hour of service performed

between those hours.

(c) A nurse performing service on a tour of duty, any part

of which is within the period commencing at midnight

Friday and ending at midnight Sunday, shall receive

additional pay for each hour of service on such tour at a rate

equal to 25 percent of such nurse’s hourly rate of basic pay.

38 U.S.C. § 7453(b)–(c). The “premium pay” section of the

CBA, in turn, repeats most of this statutory language and

provides that premium pay shall be provided “in accordance

with” § 7453. The Medical Center argued that nurses were

entitled to premium pay only for regularly scheduled tours of

duty that include night or weekend hours. Because the Medical

Center’s operating room was generally open only on weekdays,

operating room nurses did not work any regularly scheduled

tours on weekends or after 6:00 p.m., and the Center claimed

that the nurses were entitled only to overtime pay when their

work was required during those times. In support of this

argument the Medical Center pointed to an internal regulation
15

that defined “tour of duty” as scheduled hours that employees

were required to work on a regular and recurring basis.

The arbitrator, however, concluded that service at night or

on weekends was service “on a tour of duty” as required by the

statute, and ruled that the Medical Center had violated 38 U.S.C.

§ 7453 and the CBA by failing to award the nurses premium pay

for all hours worked at night and on weekends. The arbitrator

ordered the Medical Center to compensate the nurses

accordingly, “hereafter and retroactive to the date of the

grievance filing.”

An arbitrator’s award may be appealed to the FLRA. If the

FLRA finds that the award is “contrary to any law, rule, or

regulation,” it “may take such action and make such

recommendations concerning the award as it considers

necessary.” 5 U.S.C. § 7122(a). But, “[i]f no exception to an

arbitrator’s award is filed . . . during the 30-day period

beginning on the date the award is served on the party, the

award shall be final and binding.” Id. § 7122(b). In this case,

the Medical Center waited 31 days before filing its exceptions,

and the FLRA rejected the appeal as untimely.

The Medical Center refused to recognize the award, so in

June 2000 the Union filed an unfair labor practice charge with

the FLRA. This attempt to enforce the arbitrator’s award was

thwarted by the VA Under Secretary’s March 2001 decision on

the Medical Center’s request for a § 7422 ruling. In that

decision, the Under Secretary noted that, under the VA’s pay

regulations, “tour of duty” is defined in terms of nurses’ basic,

40-hour work schedule, and that the nurses receive overtime pay

– but not premium pay – for work outside that normal

workweek. Because the operating room nurses’ regularly

scheduled tours of duty did not involve night or weekend work,

the Under Secretary concluded:
16

Under the authority in 38 U.S.C. 7422(d), I find:

that the arbitrator’s decision and subsequent ULP concerns

[sic] the establishment, determination, or adjustment of

employee compensation.

Under the authority in 38 U.S.C. 7422(d), I find:

that the payment of night differential and weekend premium

pay to OR [operating room] nurses for periods of overtime

work concerns or arises out of a matter or question of the

establishment, determination, or adjustment of employee

compensation under title 38.

In response, the FLRA dismissed the ULP complaint for lack of

jurisdiction. VAMC Asheville, 2002 WL 1019134, at *5. 

B. Analysis

We determine the parties’ motions for summary judgment

under the standard set by Federal Rule of Civil Procedure 56(c):

summary judgment is appropriate if there is no genuine issue as

to any material fact and if either the Union or the VA is entitled

to a judgment as a matter of law.

The Union makes two principal arguments. The first is

based on timing: the Union argues that the VA waited too long

before issuing the § 7422 determination. The second concerns

the substance of the Under Secretary’s determination: the Union

argues that the grievance did not concern the determination or

adjustment of employee compensation. We reject these

arguments and hold in favor of the VA.
17

1. The Timing of the § 7422 Decision

The Union argues, first, that the VA lacks statutory

authority to issue a § 7422(d) determination after a grievance

has been resolved in a final and binding arbitration. Section

7422(b) provides that “grievance procedures provided under a

collective bargaining agreement” may not be applied to matters

concerning the determination of employee compensation;

according to the Union, those grievance procedures ended when

the arbitrator’s award became “final and binding” by operation

of 5 U.S.C. § 7122(b). On this argument, the VA impermissibly

undermined the finality of a legitimate arbitration by issuing its

§ 7422 Decision in March 2001, more than a year after the

arbitrator’s award became final. In a related argument, the

Union asserts that the VA violated the Union’s “substantive”

due process rights by interfering with the Union’s (and its

members’) property interest in the relief promised by the

arbitrator’s award.

We cannot agree that the VA loses its authority to decide an

issue under § 7422(d) once an arbitrator enters an award on that

same issue. As an initial matter, nothing in title 38 imposes such

a time limit. The Union argues that Congress is presumed to

legislate with existing law in mind, and therefore the interest in

arbitral finality reflected in § 7122 of title 5 must limit the VA’s

authority under title 38. We need not determine whether there

is a conflict between title 38 and title 5 in this case, however,

because 38 U.S.C. § 7425(b) expressly provides that “no

provision of title 5 . . . which is inconsistent with any provision

of . . . [chapter 74 of title 38] shall be considered to supersede,

override, or otherwise modify” any provision under chapter 74

of title 38. The plain text of this statute requires that, to the

extent 38 U.S.C. § 7422(d) creates a conflict with 5 U.S.C. §

7122, the latter provision must give way.
18

2

Accordingly, the Union’s argument that the VA

impermissibly reviewed the merits of the arbitrator’s decision fails.

Of greater importance, the collective bargaining exclusions

in § 7422(b) are jurisdictional: disputes that concern or arise out

of the determination or adjustment of employee compensation

are not subject to arbitration. In turn, a decision under § 7422(d)

will settle a dispute over an arbitrator’s jurisdiction, or, as in this

case, a dispute over the FLRA’s authority to enforce an award

in a ULP proceeding. It will not however address the “merits”

of an arbitrator’s award, because the effect of such a decision is

to establish whether the matter is subject to title 5 collective

bargaining procedures in the first place.2

 The § 7422 Decision

states that the “FLRA has no jurisdiction to review the ULP,”

because the “ULP concerns the establishment, determination, or

adjustment of employee compensation.” In its decision

dismissing the Union’s attempt to enforce the arbitration award,

the FLRA stated that “[p]arties may raise arguments regarding

the Authority’s jurisdiction at any stage of the Authority’s

proceedings.” VAMC Asheville, 2002 WL 1019134, *5.

Though that decision is not now before us, there is nothing

troubling about the FLRA’s conclusion that its jurisdiction was

properly challenged in a ULP proceeding. In the analogous

private sector context, an arbitrator’s jurisdiction may be

challenged in an enforcement proceeding brought in a district

court, and this court has similarly approved the FLRA’s

authority to review the arbitrability of a dispute when that

challenge was raised in an unfair labor practice proceeding to

enforce an arbitrator’s award. See AFGE v. FLRA, 850 F.2d

782, 785 (D.C. Cir. 1988). As there was nothing improper about

the FLRA’s examination of its own jurisdiction over the ULP

proceeding, we cannot find that the VA exceeded its authority

by issuing the § 7422 Decision while that proceeding was

pending. Accordingly, we hold that the VA did not exceed its

authority under 38 U.S.C. § 7422(d) by issuing its decision after
19

the conclusion of the arbitration.

The Union’s constitutional claim is also without merit. This

court has recognized that an act of “grave unfairness,” such as

“a deliberate flouting of the law that trammels significant

personal or property rights,” may violate the right to

“substantive” due process under the Fifth Amendment. See,

e.g., Tri County Indus., Inc. v. District of Columbia, 104 F.3d

455, 459 (D.C. Cir. 1997) (quoting Silverman v. Barry, 845 F.2d

1072, 1080 (D.C. Cir. 1988)). The Union asserts a legitimate

claim of entitlement in the arbitration award and in the relief

ordered in that award, and claims that the government’s

interference with that interest “shocks the conscience.” See

Washington Teachers’ Union v. Bd. of Educ. of the District of

Columbia, 109 F.3d 774, 781 (D.C. Cir. 1997). The threshold

for such a constitutional violation is unclear, but this court has

held that a mere violation of law does not give rise to a due

process claim. See Tri County Indus., 104 F.3d at 459 (state

law); Comm. of U.S. Citizens Living in Nicaragua v. Reagan,

859 F.2d 929, 944 (D.C. Cir. 1988) (international law). We

have held that the timing of the VA’s § 7422 Decision was not

unlawful, and so our discussion of the Union’s due process

claim comes to an end.

The Union hints at a distinct constitutional challenge, one

rooted in the constitutional separation of powers. The Union

contends that “[a] final and binding arbitration award, in the

context of a collective bargaining agreement, is the equivalent

of a U.S. District Court judgment,” and argues that the VA may

not “use an administrative power [to] evade the labor equivalent

of a District Court judgment.” Br. of Appellant at 45, 46. It is

true that “[j]udgments within the powers vested in courts by the

Judiciary Article of the Constitution may not lawfully be

revised, overturned or refused faith and credit by another

Department of Government.” Chicago & S. Air Lines v.
20

Waterman S.S. Corp., 333 U.S. 103, 113 (1948); see also

Hayburn’s Case, 2 U.S. (2 Dall.) 409 (1792). The problem with

the Union’s argument is that an arbitration award under chapter

71 of title 5 is not constitutionally equivalent to a judgment of

an Article III court. Enforcement of such an award is through an

FLRA unfair labor practice proceeding, which itself is subject

to review by the United States Court of Appeals. There may be

a point after which the VA may no longer invoke its § 7422(d)

authority to resolve a jurisdictional dispute, but because that is

not the case before us, we need not draw that line in holding that

a determination made during an FLRA proceeding is not too

late. It may be inconsiderate or even unfair, but it is not without

legal effect.

2. The Reasonableness of the § 7422 Decision

The Union next argues that the VA misapplied the

collective bargaining exclusion. We will rule for the VA if the

§ 7422 Decision is not arbitrary or capricious and if the Decision

is based on a permissible interpretation of the relevant statutes

under Chevron U.S.A., Inc. v. Natural Resources Defense

Council, 467 U.S. 837, 842-43 (1984). See Shays v. FEC, 414

F.3d 76, 96-97 (D.C. Cir. 2005) (analyzing FEC regulations

pursuant to both arbitrary and capricious review and Chevron).

In applying these standards we part ways with the Ninth Circuit,

which applied a higher level of scrutiny to a similar § 7422(d)

determination in Local 2152. In that case, the court first

determined that the VA’s interpretation of the § 7422 bargaining

exclusions “is not entitled to the full level of deference typically

afforded administrative decisions pursuant to Chevron.” Local

2152, 464 F.3d at 1057. The court instead treated the Under

Secretary’s determination as an “opinion letter” entitled to

respect only for its “power to persuade.” Id. (relying on

Christensen v. Harris County, 529 U.S. 576, 587 (2000)). 
21

We disagree with that approach. Congress specifically

authorized the VA Secretary to decide disputes over the scope

of the collective bargaining exclusions listed in 38 U.S.C. §

7422(b), and under the APA we must set aside final agency

action if it is “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).

Here, the Medical Center’s request for a § 7422(d)

determination arose from a specific grievance involving

operating room nurses, and the VA decided that the dispute was

exempt from collective bargaining and that the FLRA was

without jurisdiction to review the unfair labor practice

complaint. The § 7422 Decision is final agency action for the

purpose of judicial review under the APA and therefore will not

be disturbed unless it is arbitrary or capricious. And to the

extent that the VA’s decision turned on its interpretation of the

collective bargaining exclusions in § 7422, our review is similar,

because the VA’s interpretations are entitled to a deferential

review under Chevron. “[A]dministrative implementation of a

particular statutory provision qualifies for Chevron deference

when it appears that Congress delegated authority to the agency

generally to make rules carrying the force of law, and that the

agency interpretation claiming deference was promulgated in the

exercise of that authority.” United States v. Mead Corp., 533

U.S. 218, 226-27 (2001). In our view, by treating a § 7422

decision as an opinion letter, the Ninth Circuit in Local 2152 did

not give effect to the text of the statute; a § 7422 decision does

not offer the VA’s opinion on the scope of the exclusions

enumerated in subsection (b). Rather, subsection (d) authorizes

the VA to “decide” an “issue of whether a matter or question

concerns or arises out of . . . the establishment, determination,

or adjustment of employee compensation under this title.” 38

U.S.C. § 7422(d). Congress’s delegation of such authority “may

be shown in a variety of ways,” see Mead at 227, and in

§ 7422(d) that delegation is express and unambiguous.

Moreover, we cannot read § 7422(d) to establish the VA’s
22

decisional authority with respect to other agencies but not with

respect to judicial review, because it is clear from the text of the

statute that the bar on review by any other agency is independent

of the VA’s authority to decide disputes. A dispute over a

bargaining exclusion “shall be decided by the Secretary and is

not itself subject to collective bargaining and may not be

reviewed by any other agency.” 38 U.S.C. § 7422(d) (emphasis

added). A decision under § 7422(d) is subject to judicial review,

but it is a decision that we review, not an opinion.

The threshold question under Chevron is “whether Congress

has directly spoken to the precise question at issue.” Chevron,

467 U.S. at 842. In this case, this question is not whether the

VA is authorized to decide disputes over the scope of a

collective bargaining exclusion – it is – but whether § 7422 is

ambiguous as to the VA’s authority to interpret the statute to

exclude the Union’s grievance from the collective bargaining

process. While it seems fairly plain that Congress did intend to

grant that authority, to the extent that there is any ambiguity in

this regard, under the Chevron analysis we must defer to the

VA’s interpretation of 38 U.S.C. § 7422(d) if that interpretation

is “based on a permissible construction of the statute,” that is, if

the interpretation is reasonable. Chevron, 467 U.S. at 843. 

Our inquiry under Chevron step two overlaps with our

inquiry under the arbitrary and capricious standard. “Whether

a statute is unreasonably interpreted is close analytically to the

issue whether an agency’s actions under a statute are

unreasonable.” Gen. Instrument Corp. v. FCC, 213 F.3d 724,

732 (D.C. Cir. 2000); see also Nat’l Ass’n of Regulatory Utility

Comm’rs v. ICC, 41 F.3d 721, 726 (D.C. Cir. 1994). Congress

gave the VA broad authority to decide whether a matter

“concerns or arises out of . . . the establishment, determination,

or adjustment of employee compensation under [title 38],” and

we hold that the VA’s decision in this case was reasonable. The
23

Union argues that it merely sought the Medical Center’s

compliance with the premium pay standards already established

by 38 U.S.C. § 7453 and the CBA. But this begs the question.

The question is not whether the Medical Center failed to pay its

nurses in accordance with an agreed-upon standard. The

applicable standard is in dispute; the parties would agree that

§ 7453 provides that standard but the Union disagrees with the

VA’s ultimate conclusion that, as it applies to the operating

room nurses who work at the Asheville Medical Center, § 7453

does not mandate premium pay for night and weekend work.

The question before us, however, is whether it was reasonable

for the VA to determine that the dispute over the nurses’ pay for

night and weekend work “concerns or arises out of . . . the

establishment, determination, or adjustment of employee

compensation under [title 38].” 38 U.S.C. § 7422(d). To hold

for the VA in this case, we need not determine that the VA’s

reading of the premium pay statute is the best possible reading,

only that it was reasonable for the VA to conclude that the

matter concerns or arises out of the determination or adjustment

of the nurses’ compensation as that compensation is provided

for by § 7453. 

That standard is met in this case, because the VA’s

interpretation of § 7453 is reasonable. The VA based its

decision on its interpretation of the phrase “[a] nurse performing

service on a tour of duty.” 38 U.S.C. § 7453(a), (b). The § 7422

Decision explained that “tour of duty” refers to the regularly

scheduled workweek for which the nurses receive regular pay.

The nurses receive overtime pay for work outside their normal

workweek, but at the Asheville Medical Center, operating room

nurses’ tours did not fall during the premium pay periods

identified in § 7453. This interpretation of “tour of duty” as a

“regularly scheduled tour of duty” might not be the only

permissible interpretation of the statute, but it is a reasonable

one. The VA’s interpretation of § 7453 as it applies to the
24

Asheville operating room nurses is reasonable and clearly

concerns the determination or adjustment of employee

compensation under title 38. Therefore, we hold that the VA’s

decision – that “the payment of night differential and weekend

premium pay to OR [operating room] nurses for periods of

overtime work concerns or arises out of a matter or question of

the establishment, determination, or adjustment of employee

compensation under title 38” – was not unlawful.

III. Conclusion

For the reasons discussed above, the district court’s

dismissal for lack of jurisdiction is vacated and the case is

remanded to the district court with instructions to enter

judgment in favor of the appellees.